Friday, April 17, 2009

Risk Assessment and the Courts

by Karen Borders, Guest Contributor

The most important thing in family law court is keeping stability in children’s lives. Parents get caught up in their own struggles and forget about the impact upon their children when their home life is thrust into the courtroom. More often than not, the children become the pawns in the “game” the parents call divorce. It is nothing more than a strategy to “get” or “win” more, but no one wins in family court, certainly not the children.

The courts try to protect the children by not having them testify and having them talk with a child custody evaluator to try to ease their stress by not being brought into the courtroom. In reality, the children are in the middle of the battle. They are often used as the voice box for the parents, delivering messages back and forth, because the parents can’t bear to speak to one another. No one bothers to think about the negative impact these decisions have on the children who must deliver the messages and then endure the reactions from the “other” parent.

When did society force our innocent children to be treated so harshly and with such a lack of respect? Maybe it would be better to put them on the witness stand as they do in Canada and London. It is the parents who still “dangle their kids like carrots” to hurt the other parent.

Maturity is not often exhibited in family law court. It usually is put on the shelf while the adults—who once loved each other enough to marry and have children—display a pure hatred for one another. One might question if they were ever in the same relationship or had ever cared for each other. Divorce is ugly. What divorcing parents do to their children is even uglier.

I have seen this myself up-close and personal. I tried to be the better parent, to "get along.” The problem is that it takes two rational people to get along with one another for the benefit of the children. It is impossible to do, without the cooperation of a second party. One party can influence the children in a positive way and the other in a negative way, but how can the court tell who is providing which influence? That is the question the court deals with on a daily basis and this is what clogs the system.

The court decided to bring mental health professionals into the equation to try to determine the facts and what would be best for the family. The court calls this process a Child Custody Evaluation, referred to as a "730 Evaluation" in California. Court administrators attempt to ascertain what is really going on and where the children would be best suited to thrive. They also need to decide what is in the “best interest” of the children. We are still searching for how to reach that answer without being any closer to solving the problem after over 30 years of doing things the same old way.

The court sends family members to mental health providers to talk about their family issues and what is happening with their relationships. The evaluators are charged with the duty of figuring out what is going on within the family unit and then determining a child custody plan which they figure is in the “best interest” of the children.

The problem comes when there are any allegations of domestic violence, child abuse, or child sexual abuse. Then the evaluator needs to try to determine if the allegations are true or false. The next problem is the evaluators are not trained investigators and do not know how to investigate these criminal allegations nor do they have training in how to determine if their clients are untruthful.

Evaluators are trained to believe their client’s reality is what the client tells them and not to question what they are told. Therefore, when the evaluator believes what the client tells them, then the problem is that both parents must be considered to be telling the truth. When stories conflict, as they do more often than not, the end result is that the evaluator does not know who is telling the truth.

Then we get to the children. We tell children to tell the truth and try to teach them to tell the truth. But when we are dealing with divorce, the paradigm changes. When parents use their children, they talk to them about things which are inappropriate. They make comments that they want the kids to repeat to the evaluator who conducts the child custody evaluation. Then the children repeat some statements and forget to repeat others. The evaluator does not know what the truth is as s/he must accept statements from both sides as truth because s/he is unequipped to detect deception or to conduct an independent investigation.

Now some evaluators will use personality assessment testing and other measures for the parents involved in the divorce process. These tests show if there are any personality disorders, mental disorders, and sometimes they try to determine if there is a propensity to use alcohol or drugs. What happens after you find out this information? If one parent has a personality disorder or mental disorder, does that in and of itself preclude them from parenting their child? Of course not. There are other factors which have to be taken into consideration.

If a parent has a propensity to use alcohol and/or drugs, how do you prove they are using or that it is affecting their parenting? Parents generally don’t admit they abuse alcohol or drugs, so the testing would not be useful to the evaluator.

The evaluator then has to write a report to the court, which has recommendations on parenting plans and schedules. The report is used by the judge to assist in making the decision about the visitation. Unfortunately, this does not solve the issues, and the parent who is not happy with the results can request their case be evaluated by another specialist. In California, this is called a 733 Evidence Code-Review of a Child Custody Evaluator’s Report.

Most often, evaluations are requested by one or the other parent on a yearly basis for one reason or another. This can cause a backlog in the court system and is not very efficient, as it is costly and does not accomplish the intended purpose. On the other side, the children get subjected to being put in the middle of the parents' ongoing battle and can find stability difficult, if not impossible.

Children deserve stability in their lives. They do nothing to deserve the wrath of their parents or to be put in the middle of fighting. The “best interest” of the children is to come to a quick resolution of the truth of what is really going on in the family. If there are allegations of domestic violence, child abuse, or child sexual abuse then those questions have to be addressed first and foremost.

Is an evaluator qualified to answer or to investigate those allegations when they believe whatever their clients tell them is true? Can they determine the truth from a lie or are they in place to put together parenting plans?

Evaluators were never put in place to investigate allegations of abuse, yet they deal with these issues on a daily basis. Children are placed in their care and their futures in their hands, when the larger issues of their safety and welfare must be addressed. If an evaluator is not able to determine if the abuse allegations are true or false, then how can they determine a parenting plan?

When evaluators cannot determine what is really going on in the family, they are more likely to keep the case open for further evaluation, to review the family at a later date to see if there have been any changes. The problem with this plan is if the abuse allegations are not true, the children are then being subjected to being estranged from the alleged abusive parent without any justification. This can cause a parent to be away from their children for upwards of a year without any evidence against them. Then if they somehow get visitation after that time period, they have to be reunified with their children who they have now been alienated from due to the extensive time period apart.

Child Protective Services (CPS) is often involved. However, sometimes there is not any physical evidence to prove or file a criminal case. This does not mean the abuse did not occur. CPS might close their case "unsubstantiated," which simply means they could not prove or disprove the case.

These children and the possible domestic violence victims deserve to have an investigation to determine if the abuse did or did not occur, during the evaluation process. If domestic violence did occur, then there are specific court mandates which the judge must enforce. We are talking about people’s lives and the futures of the children. These decisions will affect them for the rest of their lives. This is not something to take lightly. It is something to take seriously and to put every effort into doing correctly and to the best of one’s ability.

The answer to the investigative needs for the family law courts is the Family Violence Risk Assessment (FVRA). The assessment is an investigative procedure which is able to investigate the allegations of domestic violence, child abuse, and child sexual abuse to determine the past, present, and potential future risk to the children and parents. The assessments provide evidence based reports in a timely manner, 6-8 weeks, as compared to the normal assessments which on average can take 4-6 months, or sometimes as long as 1 year or more. The assessments provide a final resolution and eliminate the need for expensive yearly annual evaluations.

The Family Violence Risk Assessment (FVRA) program is conducted by experienced investigators and mental health specialists, most Licensed Clinical Social Workers (LCSWs) and Marriage and Family Therapists (MFTs), all specifically trained in these fields. The program is conducted by a collaborative team under the supervision of John McLaughlin and myself. Combined, our firm has over 50 years' experience in law enforcement and mental health evaluations in family violence and child custody issues. The team also includes mental health professionals with Child Protective Services and other child welfare departments. Our experts have extensive experience testifying in criminal, civil, juvenile, and family courts, as well as forensic interviewing. The firm's team and its FVRA program qualify under the Domestic Relations Investigators, California Family Code 3110.

A Family Violence Risk Assessment is not a Child Custody Evaluation. However, we qualify as experts under Evidence Code 730. This is an investigative/assessment process rather than an evaluation. FVRA determines if there is a risk for future abuse or violence based on statistics and probability. It does not provide recommendations to a specific custody plan, but can be used in lieu of or as a compliment to a Child Custody Evaluation. Once there is a determination of risk, the Judicial Officer can then apply child custody plans based on established child custody guidelines.

These evaluations are not costly and are charged to the parents just like the Child Custody Evaluations. They actually end up costing less in the long run because it stops families from going through additional unnecessary evaluations over the years. Once a FVRA is conducted, there is no need to conduct another assessment because the risks to the children/parent(s) have already been established. This stops the game playing in family court and frees up court time for more important issues. This also helps to move the case along quicker, so the other issues can get resolved and the children have the stability they need regarding their living arrangements and visitation schedules.

There are some evaluators who recognize the value in our FVRA and use us in conjunction with their evaluations. This way they know if there is a risk to the children or either parent before they start their evaluation. They find this information invaluable to their evaluations and for setting up parenting plans.

Karen Borders is a retired police officer from Palm Springs where she served for 22 years. Karen has made a lifetime career out of helping victims of domestic violence and abuse. Karen is the co-creator of the Family Violence Risk Assessment program, which is currently being used extensively in family law courts throughout Southern California. As president of Borders, McLaughlin & Associates, Karen provides evidence-based risk assessments in high-conflict family law matters.


Delilah said...

This is an excellent entry written in layman's terms on what can and should be done in our court system to protect the rights and the lives of children caught in the cross hairs of two warring adults.

Thank you.

PJ West said...

My husband and I tried to get custody of his 5 year old little girl in the mid-80's. The ex-wife was a coke head and spent evenings at bars and her boyfriend had several DUI's. Although the mediator and judge knew this information, they refused to remove the child from her mother. Unless we could show physical abuse, children never went with the father. The ex stopped bringing the child over when she became a teen because stepdaughter knew we had "rules" and she could do, literally, anything at her mom's (out all night, drink, etc.). 20 years later, she is now living with us because last month she rolled her car driving drunk, killed her two passengers and has a broken neck. Everything we feared with her growing up with her druggie mom came to light. So much for "best interest of the child."

Leah said...

It seems that most judges believe that unless the child is in imminent danger, they should remain with the mother. It doesn't seem to matter how risky the environment is until something awful happens and the repercussions are dire. By then it is too late. It doesn't seem that the best interest of the child is as important as staying with the main stream.

FleaStiff said...

The root of the problem is this utterly nonsensical rubric of 'best interests of the child' and ridiculously absurd policies relating to family unity.

Joint custody or visitation usually leads to continued strife with the parties continuing their difficulties in dealing with each other. Social workers and judges tend to have a bias towards reuniting children with parents.

Often neither parent is any great shakes to begin with and the determination of the 'best interests' of the children is reminiscent of Woody Allen's "I used to be a heroin addict, now I'm a methadone addict". Some women think of the kid as an income-stream or simply as a way to financially punish their ex-spouse.

In the above comment, it appears the policy of keeping young children with mothers trumped the actuality of cocaine, alcohol, boy friends and DUIs. Ofcourse sometimes each parent is a druggie just as sometimes the "angelic little kid" is a walking time-bomb of fetal alcohol syndrome or arson or assault.

Violence assessments tend to be unreliable in other circumstances what is going to make the assessment be so useful simply because its a marital setting rather than a psych ward.

Anonymous said...

This is a wonderful piece! Very informative and well written!

Thanks Karen.